Basic Facts About Copyrights
A copyright is a form of protection afforded to authors of “original works of authorship.” This includes literary, dramatic, musical, artistic, and certain other intellectual works, whether published or unpublished. A copyright gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. The copyright gives the owner the right to:
- To reproduce the work in copies or phonorecords
- To prepare derivative works based on the copyrighted work
- To distribute copies or phonorecords of the work
To publicly perform the work (as in literary, musical, dramatic, pictorial, graphics and motion pictures.)
To publicly perform the work by means of audio transmission (in the case of sound recordings)
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a computer algorithm could be copyrighted, but this would only prevent others from copying the algorithm. It would not prevent others from writing an algorithm of their own to accomplish the same purpose.
It is possible to protect a work using a combination of patents, trademarks, and copyrights.
A copyright exists immediately upon fixing the form of the work and is the property of the author. There are exceptions. They are:
A work prepared by an employee within the scope of the employment is the property of the employer.
A work that is expressly and by written instrument ordered or commissioned for use as:
- a contribution to a collective work
- part of a motion picture or other audiovisual work
- a translation of a work
- supplementary work
- a compilation
- an instructional text
- a test
- answer materials for a test
- an atlas
A copyright is afforded to the author for all unpublished works irrespective of their nationality or residence. For published works, the copyright is extended to authors on the first date of publication and whose residence is within the United States, is a U.S. national, or a sovereign authority of a treaty party. There are other specific conditions that may apply.
The owner of a book, phonorecord, painting, or copy of a work does not own the copyright. Minors may own copyrights, but other laws regulate business dealings with minors.
A copyright applies to a number of works that can be fixed in a tangible form of expression, not necessarily directly perceptible, but can be communicated with the aid of a machine or device. Copyrightable works include:
- Literary works
- Musical works, including accompanying words
- Dramatic works, including accompanying music
- Choreographic works, including pantomimes
- Pictorial works
- Graphic works
- Sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
These categories are interpreted very broadly. For example, a computer program or algorithm, including the compiled version, may be registered as a literary work. An architectural work may be registered as pictorial, graphic, and sculptural.
Items that Cannot be Copyrighted
There are several items that cannot be copyrighted. They are:
- Works that have not been fixed in a tangible form of expression
- Titles, names, short phrases, and slogans
- Familiar symbols, designs, lettering, coloration, ornamentation or variations thereof
- Listings or accumulations, such as ingredients, calendars, charts, lists, tables, and contents
- Ideas, procedures, methods, systems, processes (patentable items)
- Publications incorporating works of the U.S. government
Publication of a work means to distribute copies of a work to the public by sale or other transfer of ownership. Publication also includes the offer for sale or distribution, even if no copies are sold. A public display or performance of a work does not necessarily constitute publication.
You do not have to publish a work in order for it to be copyrighted. There are important reasons to copyright a work. They are:
- Published works are required to be deposited in the Library of Congress.
- Publication affects the limitations on the exclusive rights of the copyright.
The year of publication determines the duration of copyright protection for anonymous works and for works made for hire.
- Deposit requirements are different for published and unpublished works.
- A published version may bear a copyright notice.
It is no longer required that a copyrighted work display a copyright notice, but it may be beneficial. The copyright notice is still required for works developed prior to 1 March 1989 when the U.S. adhered to the Berne Convention. The use of the copyright notice identifies the work as a copyrighted work, shows the copyright date, and identifies the copyright owner. If a work is infringed, the copyright notice will eliminate a defendant's defense based on innocent infringement.
A copyright notice should contain the symbol "©," or the word "Copyright," followed by the first year of publication, and the name of the copyright owner. For example:
© 2005 Genesis Research & Development, Inc.
A copyright notice is only used on visually perceptible copies of a work. Works of sculpture, architecture, paintings, and similar works may indicate copyrights with accompanying written notice. Audio records may indicate the copyright in the recording.
A copyright notice should be affixed or accompany a work in such a way as to give reasonable notice of the copyright.
A copyrighted work created on or before 1 January 1978 is protected from inception until 70 years after the author's death. In the case of a joint publication, the copyrighted work lasts for 70 years after the death of the last author.
For works made for hire, and for anonymous works, the duration of the copyright is 95 years from publication or 120 years from creation, whichever is shorter.
Transfer of Copyright
A copyright owner may transfer all or any subdivision of the owner's exclusive rights, but the transfer must be in writing and signed by the owner or owner's authorized agent. Non-exclusive transfer of rights requires no written instrument.
Copyright registration is intended to notify the public of the copyright. Even though a copyright registration is not required, it has several advantages. They are:
- To establish a public record of the copyright.
- Is required before a suit for infringement may be brought.
- Registration is prima facie evidence of the copyright.
- Allows for attorney's fees and statutory damages in infringement suits.
- Allows the owner to file the copyright with the U.S. Customs Service to prevent unauthorized importation of infringing works.
There is no requirement for a copyright application to be prepared or filed by an attorney, but as with all complex legal processes, it is wise to retain an attorney unless one is very familiar with the process. Genesis personnel can assist in securing competent legal assistance when copyrights are needed as part of our services.